- (1.) THIS is an application for leave to appeal to the Supreme Court from a judgment of this Court dated the 1st December, 1955, dismissing an appeal from an order of Mr. Justice Chaturvedi dated the 30th November, 1954. The applicants are the State of Uttar Pradesh, the Commissioner of Sales Tax, Uttar Pradesh, and the Sales Tax Officer, Banaras. The respondent firm is a dealer in bullion and in gold and silver ornaments, and as part, of its business it entered into forward contracts in silver. In respect of such contracts it was assessed to sales tax for the years 1948-49, 1949-50 and 1950-51 in a sum of Rs. 1,365-12-0 and these amounts it duly paid. Subsequently this Court held, and its decision was affirmed by the Supreme Court in Sales Tax Officer, pilibhit v. Budh Prakash Jai Prakash [1955] S. C. R. 243, that the provisions of the U. P. Sales Tax act purporting to impose a sales tax on forward contracts were ultra vires ; and thereafter the respondent firm applied to the Commissioner of Sales Tax, U. P. , for a refund of the aforesaid sum of Rs. 1,365-12-0. The refund being refused, the respondent firm filed a petition in this court under Article 226 of the Constitution for a writ of mandamus requiring the applicants to refund the amount of tax paid by it. That petition was allowed by an order of Chaturvedi, J. , and it is from the judgment of this Court dismissing the appeal from that order that this application has been made.
(2.) THE question raised by the applicants is whether moneys voluntarily paid as tax by an assessee, under a law to which the assessee had submitted but which is later declared invalid, is a payment under a mistake of fact or law which is recoverable. There is no doubt that the question is one of great public importance the decision of which will affect a large number of persons in this State and the liability of the State to refund a very considerable sum of money.
(3.) THE application is opposed. Learned counsel for the respondent firm has contended that the question, has been authoritatively determined by the Judicial Committee of the Privy Council and leave should not therefore be granted. This Court was of the view that the decision of the privy Council in Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi (1949) 76 I. A. 244, if correctly decided, concluded the appeal against the appellants and it was, with respect, of opinion that the decision of the Judicial Committee was right. A judgment of the Judicial committee is however no longer binding upon either this Court or the Supreme Court, and in the absence of a decision by the Supreme Court on the question at issue we think it impossible to say that that question has been authoritatively determined.;